Judicial Recognition of Outlawed Bigamous Marriage in Ethiopian Federal Supreme Court Cassation: Legal Gap-Filling or Judicial Lawmaking?

Abstract

Bigamous marriage has been outlawed under the Family and Criminal Codes of Ethiopia despite its wide practice in Ethiopia. This article examined the legality of judicial recognition of the effects of bigamous marriage by the Federal Supreme Court Cassation and its implications for the regulation of marriage. The article reviewed the substance of the current family laws in light of selected decisions of Federal Supreme Court Cassation on bigamous marriage by juxtaposing principles of legal interpretation. The article argues that the recognition of outlawed bigamous marriage by the Federal Supreme Court Cassation, even for relief purposes, amounts to an act of judicial law-making. The Court’s reasoning based on the gap-filling role of the judiciary under the guise of the necessity to address problems of bigamous marriage as a ‘social reality’ deviates from the purpose of the current rules under the family law that were deliberately designed to regulate monogamous marriage. Bigamous marriage has been outlawed under the Family and Criminal Codes of Ethiopia despite its wide practice in Ethiopia. This article examined the legality of judicial recognition of the effects of bigamous marriage by the Federal Supreme Court Cassation and its implications for the regulation of marriage. The article reviewed the substance of the current family laws in light of selected decisions of Federal Supreme Court Cassation on bigamous marriage by juxtaposing principles of legal interpretation. The article argues that the recognition of outlawed bigamous marriage by the Federal Supreme Court Cassation, even for relief purposes, amounts to an act of judicial law-making. The Court’s reasoning based on the gap-filling role of the judiciary under the guise of the necessity to address problems of bigamous marriage as a ‘social reality’ deviates from the purpose of the current rules under the family law that were deliberately designed to regulate monogamous marriage.